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Evidence of failure to give sample
(2) Unless a person is required to give a sample of a bodily substance under paragraph 254(2)(b) or subsection 254(3), (3.3) or (3.4), evidence that they failed or refused to give a sample for analysis for the purposes of this section or that a sample was not taken is not admissible and the failure, refusal or fact that a sample was not taken shall not be the subject of comment by any person in the proceedings.

Evidence of failure to comply with demand

(3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(1)(a) or in any proceedings under subsection 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 254 is admissible and the court may draw an inference adverse to the accused from that evidence.

There is no requirement to have evidence as to the extent of chances available to a person who changes their mind.[1] Moreover, where the refusal is unequivocal there is no obligation for a "last chance" warning.[2]

There is no requirement that the police officer explain all the consequences of non-compliance to a valid demand.[3]

It is unclear whether the authority to make a demand under s. 254(3) includes the authority to have the accused taken to the location of the device or whether the accused must choose to accompany them.[4] However, a failure or refusal to accompany the officer to the device may not amount to a full refusal.[5]

The refusal to comply with the demand for a breath sample must be unequivocal.[1]

In a refusal case (as opposed to a "failing" case), it is irrelevant whether or not the breathalyzer was functioning properly. [2] However, in a fail case, it may be a valid defence to show that the device or instrument was not properly functioning.[3]

It is possible to refuse by body language such as turning away and closing eyes.[4] Or refuse by silence.[5]

Evidence should show that the device was working properly. This should include evidence that the device had been previously tested including the mouthpiece for obstructions. [6]

A refusal which is equivocal and closely followed by an offer, then the offence is not made out.[7]

It has been found that a reasonable excuse is not made out on the basis of officially induced error from an accused accepting the bad advice from duty counsel to refuse the breathalyser.[8]

Where the suspect offers to give a blood sample instead of giving a breath sample in the ASD or breathalizer, the officer is at liberty to seek a voluntary blood sample. The officer may only demand a blood sample in place of a breathalizer sample if the officer believes that the "suspect is incapable of providing breath samples".

The officer may also demand that that the suspect perform a physical coordination test in place of a roadside demand (s. 254(2)(a)).